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tort law Flashcards

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1
Q

what is tort law?

A

Part of private law dealing with the
responsibility for wrongs (damages) caused to a
third party.

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2
Q

liability

A

The legal responsibility for damages caused
to others.

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3
Q

civil liability

A
  • Accountability between individuals;
  • Lower standard of proof.
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4
Q

tort liability

A
  • Imposed between members of a community.
  • Compensation and prevention.
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5
Q

tort

A

Wrong committed against
another that causes them
damage.
(unlawful act)

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6
Q

causation

A

The relationship between
a tortious act and the
consequences it produces.

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7
Q

damages

A

Harm or loss suffered by
the victim

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8
Q

qualitative liability

A

For those responsible for
people or things that
might cause harm to
others.

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9
Q

defences

A

Way in which the tortfeasor can negate liability or reduce the
owed damages (e.g.,necessity and consent).

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10
Q

tortious act

A

‘As a tortious act is regarded a violation of someone else’s
right (entitlement) and an act or omission in violation of a duty
imposed by law or of what according to unwritten law has to be
regarded as proper social conduct.
- always as far as there was no justification for this behaviour.

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11
Q

‘A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must…

A

repair the damage that this
other person has suffered as a result thereof.’

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12
Q

Infringement of a right

A

Direct, immediate, or intentional violation of
another’s subjective right. This includes:
- absolute property rights
- personality rights

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13
Q

Act or omission in violation to what is
customary in society according to unwritten
law

A
  • Most important type. Open formulation
    makes it applicable to a very wide scope of
    situations.
  • ‘According to unwritten law’: no written
    rules, so we must rely on socially accepted
    standards of proper and careful conduct.
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14
Q

tandard of care

A

Socially accepted standards of proper and
careful conduct

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15
Q

Endangerment

A

the creation or continuation of
a dangerous situation

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16
Q

Cellar Door (Kelderluik) criteria:

A
  • Degree of probability with which the nonobservance of the required caution and prudence (of the victim) can be expected
  • Likelihood of this harm occurring as a result of
    certain behavior
  • Nature and extent of the damage feared
  • Level of difficulty (for the perpetrator) in terms
    of cost, time and effort to take precautions
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17
Q

Special circumstances that remove the unlawful
character of an otherwise unlawful act. It
includes:

A
  • Force majeure (i.e., state of emergency)
  • Self-defense
  • Implementation of a legal requirement (i.e.,
    obtained permission to commit an unlawful
    act)
  • Authorized official order (i.e., command
    from police officer)
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18
Q

‘A tortious act can be attributed to…

A

the tortfeasor if it results
from his fault or from a cause for which he is accountable by
virtue of law or generally accepted principles (common
opinion)

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19
Q

Fault

A

When someone commits a wrongful act
through inadvertence or carelessness
(negligence) or deliberately (intention).

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20
Q

Generally accepted views

A

Used for cases where personal culpability is
lacking, while liability is nevertheless desirable
in connection with a reasonable allocation of
risk. Ex: foreign driver errs Dutch traffic rules
and causes accident.

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21
Q

Specific legal provision

A

When the law distributes responsibility

22
Q

Restricts liability

A

No obligation to pay damages if the violated
rule does not serve to protect against the
damage suffered by the injured party.

23
Q

Rationale

A

Ensure that damages suffered by a third party
as an (indirect) consequence of the unlawful act
is not eligible for compensation.

24
Q

UK system

A

Elements of trespass to persons and
negligence

25
Q

Torts to land

A

Damage or interference to
someone else’s land (e.g.
trespass to land and
private nuisance).

26
Q

Torts to goods

A

Damage or interference to
someone else’s goods
(e.g. trespass to goods
and conversion)

27
Q

Economic Torts

A

E.g. intentional infliction
of economic loss through
unlawful means, passing
off, and malicious
falsehood.

28
Q

Personality Torts

A

E.g. defamation,
harassment, and invasion
of privacy.

29
Q

Abuse of power torts

A

E.g. misfeasance in public
office, and malicious
prosecution

30
Q

Statutory torts

A

Breach of a duty
established by law, when
the legislator intended
that such breach would be
actionable in tort

31
Q

Tort of trespass to persons,

A

Direct and intentional interference:
- Battery
- Assault
- False imprisonment

32
Q

Tort of negligence

A

Indirect interference

33
Q

trespass to person

A
  • Intentional and direct acts of interference
  • It is the act (and not the injury) which must be intentional
  • Actionable per se: claimant does not need to prove damage
34
Q

battery

A
  • Protects bodily integrity and dignity
  • Any contact, no matter how trivial
  • Defendant must intend the act
35
Q

assault

A
  • Requires no physical contact
  • Reasonable belief
  • Do not mix with criminal assault
    Which is the act of attacking someone
36
Q

False
Imprisonment

A
  • Does not require incarceration or force, A verbal command (stay and do not leave!) is enough.
  • No false imprisonment if:
    • reasonable means to escape
    • omission
    • reasonable restriction
    • consent
    • order of a court and legally justified
  • Victim does not need to be aware, The knowledge of the detention might be relevant to the assessment of damages
37
Q

Negligence

A
  • Unintentional and indirect acts of interference.
  • Breach of a legal duty of care which results in damage to
    someone.
  • Three elements: (i) duty of care; (ii) breach by the
    defendant; (iii) damage to the claimant
38
Q

Duty of care Two key cases:

A
  • Caparo v Dickman (1990)
  • Donoghue v Stevenson (1932)
39
Q

Caparo three-stage test

A

1: Harm is a reasonably foreseeable result of
the defendant’s conduct.
2: Proximity
3: It is fair, just and reasonable to impose this
duty

40
Q

Omissions generally do not create duty of care,
unless special relationship between claimant
and defendant:

A
  • Undertakings
  • Responsibility
  • Control
41
Q

two questions within the UK system

A
  • How should the defendant have behaved,
    i.e. standard of care?
  • Did the defendant’
    s behaviour fall below
    the desired standard, i.e. breach?
42
Q

General liability

A

Based on personal fault of the wrongdoer,
and defendant is liable only for their own
acts.

43
Q

Qualitative or Strict
liability

A

Based on a certain quality or relationship
one has with another person or thing.
Neither illegality nor fault is required.

44
Q

Employer’s liability for the fault of employees

A
  • Benefit and burden
  • Best position
  • Responsibility
  • Incentive
  • Spread the loss
  • Easier compensation
45
Q

Benefit and burden

A

Who obtains the
benefit, must bear the
burden.

46
Q

Incentive

A

To make employer
more selective with
workforce and
encouraging with
safety measures

47
Q

Best position

A

To know or to find out
the nature and cost of
accidents and take
insurance against
these risks.

48
Q

Spread the loss

A

Passe extra cost to
public (higher prices)

49
Q

Responsibility

A

For ensuring that the
employees are
properly trained.

50
Q

Easier compensation

A

Employer has more
means to pay (e.g.
liability insurance)

51
Q

dutch system

A
  • Qualitative Liability
  • Civil Code (BW), sections 6.3.2 (persons and things) and
    6.3.3 (products)
  • Employer’s liability for employee’s fault: art. 6:170 BW

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